Justice Jurisprudence Research Articles

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

Letter From the Editors

We are excited to welcome you the inaugural issue of theJournal of Forensic Social Work. The Journal is a forum for practitioners, scholars, policy makers, advocates, and others interested in social work in the legal system. As editors of the Journal of Forensic Social Work, our goal is for the journal to serve as a guide for social workers practicing in the forensic arena by offering them a clear identity and the knowledge base they need to practice effectively. We envision that the Journal of Forensic Social Work will serve as a primary resource for practitioners in the field of forensic social work. The journal will provide an opportunity for the discussion of important policy and social justice issues within forensic practice as well as the dissemination of empirical research on legal issues, systems of care, and on the management and treatment of victims of crime and criminal offenders. The Journal of Forensic Social Work recognizes that social workers are fundamental stakeholders in the justice system. The Journal articles will offer current theory, cutting edge research, and practice guidelines that will contribute to effective and ethically informed practice for these stakeholders. In this inaugural issue, a broad range of topics are discussed by eminent scholars such as NASW social work pioneer Dr. Carlton Munson’s article on standards of practice and an article on expert witness testimony by the leading authority in the field, Dr. Stanley Brodsky. Dr. Tina Maschi’s article on the evolution of forensic social work anchors the inaugural issue and details therich history of the work. Two articles by forensic scholars, Dr. Wesley Churchand Dr. Susan McCarter, provide a sample of exemplary research and policy articles that we will continue to disseminate though the journal. Finally, we present a review of forensic ethics and a revision of the NOFSW Code of Ethics. The quality of the scholars and articles in this first journal provide a solid foundation for the launch of this highly anticipated journal. Launching a new journal is no easy task and we are indebted to countless individuals along the way. It really does take a village to raise a child, and the same could be said about launching a journal. Over the years, the journal has been the child of many, although three individuals stand out. These three visionaries provided vital service, wisdom, and unwavering faith and without each of them, the journal would still be in its infancy. First, Dr. Ira Neighbors will be honored as the Founding Editor for his passion and grassroots work to transition the journal from an idea to a reality. Next, our consulting editor, Dr. Jon Conte, provided invaluable wisdom and consultation to bring the Journal to publication. Finally, we are indebted to Kathryn Rutz, Acquisitions Editor at Taylor and Francis, for her leadership and belief in the Journal. This is an exciting time for forensic social workers who have been waiting for a peer-reviewed publication that will promote our professional image and provide a scholarly venue for debate and the progression of knowledge. The Journal of Forensic Social Work will disseminate information based on solid research methodology, good multicultural practice, and the advancement of restorative justice and therapeutic jurisprudence that we know can ameliorate many of the social ills and crime problems in America.

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.

A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration

AbstractThe development of European integration from an economic to a political community has become manifest not just in the continuous addition of non‐economic policy areas to the treaties. The introduction of Union citizenship (and its controversial subsequent development in the European Court of Justice's jurisprudence) has also triggered a paradigm shift in one of the community's core areas, the concept of negative integration hitherto intrinsically linked to the internal market. Thus, neither the individual's quality as a market actor nor his/her involvement in a transnational economic activity is a condition for enjoyment of the market freedoms' core guarantees, these being a right of residence and a far‐reaching claim to national treatment in other Member States, as well as a prohibition on restrictions to the free movement of persons. A new fundamental freedom beyond market integration (‘Grundfreiheit ohne Markt’) has emerged. This process, whose consequences for the welfare systems of the wealthier Member States have been fiercely discussed for some time, however, also threatens to curtail severely the regulatory autonomy at the national level.

TUPE, Collective Agreements and the Static-Dynamic Debate: Alemo-Herron and Others v Parkwood Leisure Ltd * [2010] IRLR 298, CA

In Alemo-Herron and Others v Parkwood Leisure Ltd [2010] IRLR 298, CA, the Court of Appeal considered the scope of the protection provided by the domestic transfer of undertakings legislation to transferring employees some or all of whose terms of employment are, prior to the relevant transfer, determined in accordance with a collective agreement by a third-party negotiating body. In so doing, the Court of Appeal was required to determine the interaction of the European Court of Justice (ECJ) jurisprudence with that of the domestic courts in relation to the issue of whether, after a transfer of an undertaking, a transferee can remain bound by a pay determination method established by a collective agreement by which the transferor was bound but to which the transferee is, after the transfer in question, not a party. The decision of the Court of Appeal confirms the proper approach to be adopted to the interpretation of the domestic implementing legislation as well as highlighting the subtly different treatment afforded under the transfer of undertakings legislation to collectively determined, as distinct from other, contractual terms of employment.

The 2009 Wada Code: A More Proportionate Deal for Athletes?

This article seeks to assess the leading force in developing anti-doping policy in sport; the World Anti-Doping Agency. This article will analyse the 2009 World Anti Doping Agency Code, which came into force on 1 January 2009. The 2009 Code represents the latest effort to fight doping in sport, and contains a considerable number of new provisions from that which was previously in place. The main question this article poses is whether the changes made in the 2009 Code are justifiable as being proportionate in order to take forward the fight against doping whilst at the same time respecting athletes’ rights. The article goes on to detail the new provisions of the 2009 Code and assesses the proportionality of each in the light of standard principles of justice and specific sporting jurisprudence on the matter, particularly the judgments of the European Court of Justice on this issue. The conclusion reached is that several of the provisions contained in the 2009 Code are in breach of the proportionality principle by violating the personal rights of athletes, particularly those relating to economic livelihood, privacy and procedural fairness. Accordingly, aggrieved athletes will inevitably bring legal disputes.

Influence of The European Court of Justice Jurisprudence on the Application of Tax Law in Poland

Influence of The European Court of Justice Jurisprudence on the Application of Tax Law in Poland

Inexplicable Law: Legality's Adventure in Europe

European Union law regulates how it is to be known by national judicial tribunals in Europe. The process most relevant to such a knowledge determination is the so-called preliminary reference (Art. 234 EC Treaty), which has been praised for having been indispensable for the creation of a uniform European legal system. Roughly stated, this procedure puts the European Court of Justice in the position vis-a-vis national courts to answer authoritatively questions of interpretation where European Union law appears to be unclear. In a more recent case, which is discussed in the paper below, the question arose whether the jurisdiction of the European court also extends to cases where European Union law is, despite ostensible clarity, in fact unclear and hence in need of clarification. This question gave rise to another one: what is the appropriate legal consequence for a national court's failure to refer a matter to the European Court when the national court believed that the law was clear, indeed, and, hence, not in need of clarification at all. The paper begins by reminding the reader of how important the co-operative partnership is between the European Court of Justice on the one hand and national courts on the other for the implementation of the Community's legal system. It then turns to two different modes of dealing with bad court decisions against which there is no further appeal. After a short sketch of the European Court of Justice's jurisprudence on state liability it will offer a reconstruction of how the Court dealt with an instances of purported misinterpretation by a Member State Court deciding at last instance. It will be seen that the Court's precedent, even though firm in principle, is necessarily self-effacing in practice.

The Demarcation of Straddling Villages in Accordance with the International Court of Justice Jurisprudence: The Cameroon–Nigeria Experience

The existence of straddling settlements between Cameroon and Nigeria is one of the features of their geographical location as neighbouring West African States. Although the existence of these settlements did not constitute a central part of the boundary dispute between both States, implementation of the recent World Court judgment presents crucial dilemmas as to the treatment of straddling communities in particular and, to some extent, boundary villages as well. This article explores the alternatives that may be adopted in attaining a fair and just implementation of the Court's judgment in relation to straddling villages and boundary communities. The delimitation and demarcation of straddling villages and villages that fall into another State's territory are bound to be an increasingly common feature of the work of international courts and demarcation commissions as populations increase and the need to definitively specify borders increases. It is, therefore, necessary that a specialized jurisprudence is developed for this area of law. This article, therefore, attempts to highlight difficulties in the jurisprudence of the International Court of Justice in its work in this area and suggests a typology of factors that may be adopted in varying delimitation lines by adjudicators and demarcators. It also attempts a digest of what may represent good practice in the law of boundary delimitation and demarcation by examining similar cases around the world. The argument presented is that there is enough within the corpus of international law and international relations for courts to avoid splitting communities needlessly or subjecting populations to the whims and caprice of hostile States' territorial jurisdiction, particularly in relation to a continent such as Africa, which has suffered a long and unfair history of balkanization of its peoples and civilizations. The article makes the case that the World Court needs more law elaboration if not judicial activism in its delimitation work to avoid inadvertent complicity in the abuse of peoples' rights and to attain a more robust resolution of boundary disputes. The view advanced is that where aspects of the Court's delimitation may be unsatisfactory and contrary to the mutual interests of disputants, those charged with the task of implementing the Court's judgment must not be slavish in their appreciation of the spirit of judicial resolution. Where there is the danger that human and generational rights would be needlessly compromised, nothing apart from an unimaginative and unco-operative approach prevents demarcators from independently adopting a more holistic resolution of the dispute in the interest of human justice, such as by (within very strict limits) varying delimitation lines suggested by the Court in particular sectors.

Moral Ambition: The Sermons Of Harry A. Blackmun

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this Service of Death and Resurrection was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on The Churchmanship of Harry Blackmun. Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once preached on the Book of Ruth. Dr. Holmes concluded his eulogy by remarking that Justice Blackmun's theory of Constitutional interpretation was the same as his theory of Biblical interpretation: a theory grounded in compassion. On March 4, 2004 the Justice's papers became available to the public through the Library of Congress. In addition to the sermon on the Book of Ruth, preached in 1992, there was a second sermon, preached in 1987 on the bicentennial of the Constitution. In this essay I will describe how these sermons connect to and illuminate the Justice's jurisprudence. First, I will describe Blackmun's religious upbringing and interests. Next, I will summarize the two sermons. Then I will show how the sermons relate to each other, and to one of the Justice's most famous opinions: his dissent in DeShaney v. Winnebago County D.S.S. One might ask why the sermons of a sitting Justice would be thought to shed any light at all on his jurisprudence, especially in a Justice who, like Blackmun, was careful of the boundaries between church and state. As I show below, recent scholarship has focused on the parallels and similarities between Constitutional and Biblical interpretation. In this essay, I take seriously Dr. Holmes's closing comment and I ask: How similar was Blackmun's interpretive approach to the Constitution and to the Bible?

No-One Slips Through the Net? Latest Developments, and Non-Developments, in the European Court of Justice's Jurisprudence on Art. 230(4) EC

No-One Slips Through the Net? Latest Developments, and Non-Developments, in the European Court of Justice's Jurisprudence on Art. 230(4) EC

In Search of Restorative Jurisprudence

Restorative justice jurisprudence, it is argued, requires upper limits on sanctions but not lower limits, and rejects the notion of proportionality. It involves an active rather than a passive conception of responsibility. Finally, restorative justice requires contextual justice more than consistent justice. The principles that ought to inform restorative justice practice are many rather than few. An account of what those principles might be, informed by the author's attraction to a republican theory of restorative justice, is advanced.

Explaining Variation in the Use of European Litigation Strategies

Through the examination of one of the most successful cases of a European Community (EC) law litigation strategy, this article develops a general framework for understanding when and how the EC legal system will be successfully used by domestic groups to challenge national policy. The authors show how the European legal system actually shifted the domestic balance of power in favor of equality actors, allowing a previously weak domestic group to influence the United Kingdom's gender equality policy at the height of Conservative Party rule. Expanding beyond the British case, the article develops a series of hypotheses about when the EC legal tool is likely to be used by groups to influence national policy, hypotheses that could account for cross-national variation in the impact of European Court of Justice jurisprudence on domestic policy in areas outside of equality policy.

Subsidiarity and Self-Interest: Federalism at the European Court of Justice

Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice's jurisprudence as well. It begins by analyzing the federalism problems posed by the Court's case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that the Court's existing compensation and rights-centered rationale is largely insufficient, the article develops a two-fold argument for sustaining Member State liability even under the subsidiarity principle: such liability is essential to deterring Member State cheating on implementation, and encourages the development of directives that delegate rather than precisely prescribe regulatory content. The article concludes by describing possible modifications to prevailing liability doctrine in order to render it more consistent with the subsidiarity and proportionality principles.

"A Very Eden of the Innate Rights of Man"? A Marxist Look at the European Union Treaties and Case Law

In this paper I approach the European Union Treaties (Rome and Maastricht) and the European Court of Justice's jurisprudence from a Marxist standpoint. I argue that the treaties and case law of the European Union (EU) revolve around the rights of things (commodities), rather than of people. People primarily gain rights within the EU by demonstrating that they embody exchange value and are therefore personified commodities; people are not accorded rights merely for being human. In essence, the treaties and case law have enshrined Marx's notion of commodity fetishism, which Marx asserted to be a social mystification, into transparent law. Focusing on the grand scheme of the treaties' jurisdiction in this manner also illuminates the role of the court as it struggles to balance the demands of capital's self-valorization with fundamental human rights. I then consider the consequences of this balancing act for the EU integration process. I argue that this phenomenon as a whole also carries implications for EU civil society and for notions of legal equality among persons.

“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law

In this paper I approach the European Union Treaties (Rome and Maastricht) and the European Court of Justice's jurisprudence from a Marxist standpoint. I argue that the treaties and case law of the European Union (EU) revolve around the rights of things (commodities), rather than of people. People primarily gain rights within the EU by demonstrating that they embody exchange value and are therefore personified commodities; people are not accorded rights merely for being human. In essence, the treaties and case law have enshrined Marx's notion of commodity fetishism, which Marx asserted to be a social mystification, into transparent law. Focusing on the grand scheme of the treaties' jurisdiction in this manner also illuminates the role of the court as it struggles to balance the demands of capital's self-valorization with fundamental human rights. I then consider the consequences of this balancing act for the EU integration process. I argue that this phenomenon as a whole also carries implications for EU civil society and for notions of legal equality among persons.

The Emerging Jurisprudence of Justice O'Connor

The Emerging Jurisprudence of Justice O'Connor